Court Martial TypesSeptember 19, 2019
Court Martial Types
A Court Martial can be one of three different types. A general overview of each type is explained below.
Court Martial Type 1: Summary Court-Martial
A Summary Court-Martial is the lowest level of Court-Martial. It can be convened by lower level Commanders (usually an O5). A Summary Court-Martial is authorized to give the following punishment to a Servicemember: confinement for up to 1 month (E4 and below only), hard labor without confinement for up to 45 days (E4 and below only), restriction to specified areas for up to two months, forfeiture of 2/3rds pay for up to one month, and reduction to the lowest enlisted grade (can only reduce E5 and above one rank).
Summary Courts-Martial are usually convened in the following situations:
- when a junior Servicemember is accused of many instances of rather minor misconduct;
- when the Command wants to scare a Servicemember or the rest of the unit with jail time, but doesn’t want to go through the trouble of convening one of the more involved Courts-Martial; or,
- when the Command wants to pursue taking an E7 or above's rank, but doesn’t want to go through the trouble of convening one of the more involved Courts-Martial
Servicemembers have the right to refuse a Summary Court-Martial and demand one of the types discussed below (they can’t choose which one though). The decision to turn down a Summary Court-Martial should be discussed thoroughly with a military lawyer before being made.
If a Servicemember is not represented by a lawyer at a Summary Court-Martial it will not be recognized as a federal conviction like other types of Courts-Martial. If, however, a Servicemember elects to be represented by a lawyer, they risk that it will be recognized as a federal conviction. Generally, the best course of action for a Servicemember is to seek the assistance of a lawyer before the Court-Martial to help him/her prepare but not during the actual proceeding.
The convening authority picks an officer (usually a senior O3 or above) to act as the judge and jury. Despite common the misconception to the contrary, the rules of evidence still apply. Servicemembers generally act as their own lawyer and plead their case. Government paralegals usually act as the prosecutor.
Court Martial Type 2: Special Court-Martial
There are two types of Special Courts-Martial. The first type, which is more common, is convened by a General Officer. This type of Special Courts-Martial can result in the following punishment: confinement for one year or less, a bad-conduct discharge, forfeiture of 2/3rds pay for 12 months or less, reduction to E1, and other minor punishments. Servicemembers will be represented by an attorney and will have the option on whether a jury or a judge decides their case. These types of Special Courts-Martial are convened primarily when the Command is seeking a bad-conduct discharge and not a lengthy term of confinement. Sometimes JAG officers refer to Special Courts-Martial as misdemeanor court; however, Servicemembers should still take Special Courts-Martial very seriously, as the consequences can be life altering (i.e. a bad conduct discharge, jail time, federal conviction on record).
The second type of Special Court-Martial is very new (2019). In these types of Courts-Martial Servicemembers are not entitled to a jury. A judge (or magistrate) decides a Servicemembers guilt or innocence and sentence. A Servicemember cannot turn this type of Court-Martial down and any conviction does register as a federal conviction. Punishments can be up to 6 months in jail, forfeiture of pay, reductions in rank, and some other minor punishments. No punitive discharge is authorized. This second type of Special Court-Martial is relatively untested. It is unclear if and how the Commands will use them. There is speculation that it will turn into drug court. Two of the biggest concerns is the lack of a right to a jury and the possible use of magistrates (likely less experienced O4 JAGs).
Court Martial Type 3: General Court-Martial
A General Court-Martial is the most common and highest level of Court-Martial. At this type of trial any punishment authorized for the specific offenses alleged can be adjudged (i.e. jail time up to life without parole, dishonorable discharges, reduction in rank, forfeiture of pay). A Servicemember can elect to have a judge or jury decide their guilt or innocence and/or sentence. General Courts-Martial are normally convened for any Article 120 (rape/sexual assault) case, murders, any case involving a death, lengthy AWOL/desertion cases, serious drug cases (i.e. distribution), child pornography cases, and more severe assault and battery cases; however, any offense under the UCMJ can be sent to a General-Court Martial. They are by far the most common type of Court-Martial.
As noted above, any type of Court-Martial can result in severe consequences. Effective legal representation can be the difference between a good and bad result.
This article was written by Attorney Matthew Barry.